The Senate turned down an attempt to protect religious freedom in the health-care debate.

Joan Frawley Desmond

WASHINGTON — Efforts to secure religious freedom for employers and insurers who object on moral and religious grounds to the federal mandate for contraception and abortion coverage stalled in early March.

The U.S. Senate voted 51-48 March 1 to table the bipartisan Respect for Rights of Conscience Act (S. 1467), sponsored by Sen. Roy Blunt, R-Mo., and 37 other senators. (See how your senator voted here.)

The U.S. Conference of Catholic Bishops issued a statement saying the vote “impels the Church to strengthen its resolve to support religious freedom.”

“The need to defend citizens’ rights of conscience is the most critical issue before our country right now,” said Bishop William Lori of Bridgeport, Conn. Bishop Lori chairs the bishops’ Ad Hoc Committee on Religious Liberty. “We will continue our strong defense of conscience rights through all available legal means. Religious freedom is at the heart of democracy and rooted in the dignity of every human person. We will not rest until the protection of conscience rights is restored and the First Amendment is returned to its place of respect in the Bill of Rights.”

Bishop Lori said the conference will build on the “base of support” in the Senate, consisting of the 48 senators who voted for the bill, including several Democrats. He said the bipartisan vote reaffirmed “our nation’s long tradition of respect for rights of conscience in health care.”

The bishop said the conference would “pursue legislation in the House of Representatives, urge the administration to change its course on this issue, and explore our legal rights under the Constitution and the Religious Freedom Restoration Act.”

In response to the failed vote, Alliance Defense Fund’s legal counsel, Matt Bowman, said, “The government cannot tell Americans that certain parts of their faith are not important enough to practice. People of faith are explicitly protected by the Constitution and federal law from such radical state invasions of conscience. The Blunt/Fortenberry Amendment was a necessary measure to begin to restore the religious liberties of Americans that Obamacare has trampled on with its assumption of unlimited bureaucratic power. Every vote for religious freedom should be unanimous, but, tragically, our fundamental freedoms didn’t seem to matter to enough senators.”

Bishop Lori has testified several times on Capitol Hill in recent months, including a Feb. 28 appearance before the House Judiciary Committee. The hearing provided opponents of the Health and Human Services contraceptive mandate a forum to explain why an “accommodation” President Obama offered Feb. 10 failed to address their concerns.

“This ‘accommodation’ would not change the scope of the mandate and its exemption,” Bishop Lori testified during the House Judiciary Committee hearing, “Executive Overreach: The HHS Mandate Versus Religious Liberty.”

“Instead, it would take the form of additional regulations whose precise contours are yet unknown and that may not issue until August 2013,” noted Bishop Lori.

Kathleen Sebelius, the secretary for the U.S. Department of Health and Human Services, approved the final rule requiring virtually all private employers to provide co-pay-free contraception services despite objections from the USCCB, which said the religious exemption was too narrow to protect church-affiliated universities, social agencies and hospitals.

On Feb. 10, Obama unveiled his “accommodation,” which promised to pass on the cost of providing co-pay-free contraception services to insurance companies, and thus exempting religious institutions that morally objected to these services.

The U.S. bishops’ conference rejected the modification as essentially meaningless, noting that employers would be asked to pay higher premiums to cover additional services and that many church groups were self-insured and thus would pay directly for contraceptive services.

But Daughter of Charity Sister Carol Keehan, president and CEO of the Catholic Health Association, a trade group, said she was “pleased” with the modification, which reportedly would be incorporated into the final rule at an unspecified date, perhaps after the election.

After Obama announced his “accommodation,” the White House told reporters he was “done” with the issue. Yet, weeks later, the controversy has not lost steam on Capitol Hill or on the campaign trail.

On Feb. 16, the House Committee on Oversight and Government Reform conducted a high-profile forum, which featured Bishop Lori, as well as Baptist, Lutheran and Jewish leaders and church-affiliated university administrators who opposed the “accommodation” as unacceptable.

The Senate’s Respect for Rights of Conscience Act of 2012 would have provided a broad exemption to employers and insurance carriers who oppose specific health services for moral or religious reasons. The Blunt amendment was attached to a critical highway bill.

Indeed, judging from the statements and discussion at the often heated House Judiciary Committee hearing, the “accommodation” has only injected more confusion and election-year spin into what was once a straightforward debate on the scope of constitutional protections for religious liberty and conscience rights.

Opponents of the mandate now must counter a strongly partisan effort to characterize their campaign as an attempt to bar access to contraception rather than a defense of the free exercise of religion, protected under the First Amendment.

“Ever since the mandate has been announced, fair is foul, and foul is fair,” stated Bishop Lori, expressing his frustration with an often contradictory political and media debate, which presents established jurisprudence on First Amendment rights as an intolerable threat to the provision of basic health care.

“‘Choice’ suddenly means ‘force,’” said Bishop Lori.

“I emphasize this word ‘force’ precisely because it is one of the key differences between a mere dispute over ‘reproductive health policy’ and a dispute over religious freedom. Those who would try to conceal that religious-freedom aspect have done all in their power to conceal the key element of government coercion,” he stated.

“This is not a matter of whether contraception may be prohibited by the government. ... Instead, it is a matter of whether religious people and institutions may be forced by the government to provide coverage for contraception or sterilization, even if that violates their religious beliefs.”

During the question period, some Democrats suggested that the president’s “accommodation” had fully addressed the objections of religious groups. Addressing the panelists’ concerns about the mandate’s threat to conscience rights, one congressman noted that desegregation violated the personal beliefs of some Americans, and he appeared to imply that the bishops’ demands reflected an equally unacceptable belief. Bishop Lori “categorically” rejected the attempt to equate Church teaching with racism as deeply offensive.

The Bridgeport bishop, for his part, sought to inject a note of realism and urgency amid rhetorical attacks and political theater.

“We are crossing the Rubicon,” he stated, pointing out that established jurisprudence and the health-care ethics of Catholic hospitals had served the nation well and should not be dismantled.

Panelists, including Jeanne Monahan, director of the Family Research Council’s Center for Human Dignity, and Asma Uddin, with the Becket Fund for Religious Liberty, stressed that the “accommodation” was not legally binding and that the original final rule remained on the books unaltered.

Rescission was “the real way out of this,” Bishop Lori replied. As approved, the federal rule unjustly required Catholic institutions to provide contraception, including abortion-inducing drugs. The rule forced Catholic organizations to be “a counter witness to our own teaching. … We could be fined,” he said, with “severe and crippling” fees.

His objections were challenged by Democrat committee members who reported that a number of Catholic organizations, including the Association of Jesuit Colleges and Universities, the Catholic Health Association, the Leadership Conference of Women Religious, and Sisters of Mercy of America were all “pleased” that adjustments are being made.

Further, during the question period, one panelist, a public-health expert, suggested that broad religious exemptions would produce an unpredictable patchwork system of health insurance that would leave many female employees unprotected.

The panelist, Dr. Linda Rosenstock, the dean of the School of Public Health at UCLA, chaired the Institute of Medicine’s Committee on Preventive Services for Women, which approved the list of co-pay-free mandatory services.

Rosenstock said she had attended the hearing to comment on the public-health need for expanded access to contraception services. But Democrats on the committee also pressed her to report on how Catholic health-care institutions had adapted to California’s contraception mandate. She suggested that church-affiliated employers had adapted fairly well to the state rule, noting that the hospital network Catholic Healthcare West included contraception in its insurance plan.

Rep. Dan Lundgren, R-Calif., a Catholic, countered that Catholic Healthcare West, now known as Dignity Health, had severed its ties with the Church. He added that the HHS mandate was anti-Catholic, a throwback to the religious bigotry of the 19th century, when hostility toward Catholics arose from Republican ranks and the Know-Nothing movement. He said Feb. 29 that Catholic institutions are attacked as “anti-science” because they do not accommodate anti-life policies and services.

“There is a conflict here,” concluded Lundgren, who said that the contraception mandate directly threatened the religious liberty of believers.

Members of the committee made repeated references to the 2012 election, underscoring the fact that the fight to repeal the HHS mandate has emerged as a hot campaign topic, with media commentators asking GOP contenders to explain whether they seek to deny contraception coverage to women. Some news analysts have suggested that Rick Santorum’s rise in the polls has been fueled by the controversy, as his supporters in the GOP base leap to defend First Amendment rights.

But the fight also has surfaced in House and Senate campaign battles. Sen. Scott Brown, R-Mass., whose support for contraception and abortion rights has drawn support from independent voters, has opposed the narrow religious exemption in the HHS mandate and endorsed the Respect for Conscience Rights Act, which is also backed by the bishops’ conference.

Brown’s opponent, Democratic candidate Elizabeth Warren, has vigorously attacked his endorsement of a bill she describes as a “dangerous measure that would allow insurance companies and employers to deny health-care coverage to anyone for any reason.”

Prominent women who support the bill have sought to add their voices to an often confusing and chaotic debate. But some say that victory depends on the bishops’ ability to lead and energize their flock.

Wall Street Journal columnist Peggy Noonan posted a Feb. 23 commentary that noted that the conscience bill could soon come to a vote “in the Senate. But members of both houses fear nothing will go forward without full, explicit and vigorous Church backing.”

Noonan then pondered the unthinkable: “What happens if the ruling stays? Will Catholic Charities close down? Assuming not, how big an annual fine will they have to pay if they refuse to bow to the mandate?

“A fine on faith. Who thought they’d live to see that in America?”

“Will the priests be talking about this on Sunday so the phones of senators are ringing Monday?” Noonan asked, posing a question that was not purely rhetorical.

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